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Archive for February 10th, 2010

The latest from the Laurel & Hardy Policy Institute: I’m not sure that many people will applaud the latest Tory poster. It seems to my increasingly jaded eye that Cameron and his advisers are just trying to be too clever and too ‘hip and down with da kids etc etc etc’ . I feel confident that they will come up with something daft tomorrow as well…..

UPDATE: Appeal judge watered down Binyam Mohamed torture ruling

The Guardian: Government persuaded Lord Neuberger to delete damning references to MI5 ‘culture’ of suppressing evidence

Binyam Mohamed torture evidence must be revealed, judges rule

The Guardian reports: “High court ruling compels British government to disclose what MI5 knew of refugee’s treatment in Guantánamo Bay.”

Three of Britain’s most senior judges have ordered the government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed – unanimously dismissing objections by David Miliband, the foreign secretary.

In a ruling that will cause deep anxiety among the security and intelligence agencies, they rejected Miliband’s claims, backed by the US government, that disclosure of a seven-paragraph summary of classified CIA information showing what British agents knew of Mohamed’s torture would threaten intelligence sharing between London and Washington, and therefore endanger Britain’s national security.

The judges – Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen’s Bench – shattered the convention that the courts should not question claims by the executive relating to national security.

In damning references to claims made by Miliband and his lawyers, and stressing the importance of the media in supporting the principle of open justice, they said the case raised issues of “fundamental importance”, of “democratic accountability and ultimately the rule of law itself”.

The following is quoted from the first judgment of the Divisional Court in the Binyam Mohamed case on 21 August 2008. We have alerted the Court to a typographic error.

“The following seven paragraphs have been redacted

[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]”

***

Summary of the judgments given on 10 February 2010

The Queen on the application of Binyam Mohamed– and –The Secretary of State for Foreign and Commonwealth Affairs

As the Lord Chief Justice explains, this appeal raises issues concerned with terrorism (paragraphs 10 to 13), torture (paragraphs 14 to 24), and open justice (paragraphs 37 to 42).

The facts giving rise to this appeal are set out in paragraphs 25 to 33 of the judgment of the Lord Chief Justice, and are more fully set out in paragraphs 60 to 128 of the judgment of the Master of the Rolls, and paragraphs 210 to 259 of Sir Anthony May.

The issue was whether, as the Foreign Secretary contended, seven short subparagraphs should be removed from the published version of a judgment, given by the High Court on 21 August 2008, on the ground that their publication would infringe the control principle (which is explained in paragraphs 43 to 47 of the judgment of the Lord Chief Justice).

All three members of the Court of Appeal upheld the High Court’s decision, given on 16 October 2009, that the seven paragraphs should be published. The Lord Chief Justice’s reasons are in paragraphs 48 to 56; the Master of the Rolls’ reasons are summarised in paragraphs 136 to 141, and are given in more detail in paragraphs 142 to 203, and Sir Anthony May’s reasons are in paragraphs 265 to 295.

In paragraphs 5, 6, and 51 the Lord Chief Justice deals with the suggestion made at the hearing that the High Court’s decision of 16 October 2009 was “irresponsible”, and the Master of the Rolls agrees with him at paragraph 205.

48. In agreement with the Master of the Rolls and the President of the Queen’s Bench Division, in my judgment, this appeal should be dismissed. By way of emphasis, and so as to disclose my own approach to the problem, I shall briefly highlight what seem to me to be the most important considerations.

49. I have no difficulty in acknowledging the centrality of the control principle or confidentiality to intelligence sharing arrangements and no inclination to underestimate their importance to national security. I am therefore acutely conscious of the arguments advanced and information provided by the Foreign Secretary in the open applications for PII and indeed in the Sensitive Schedules.

50. Nothing in this judgment should be seen as devaluing the confidentiality principle, and the understanding on which intelligence information is shared between this country and the USA. It is clearly established that the publication of the redacted paragraphs will result in a review of these sharing arrangements. The review might or might not produce a change. There is a clear risk, and the Foreign Secretary believes, that any such review would culminate in new, and from the point of view of national security, disadvantageous arrangements. However that risk would be the inevitable concomitant of any occasion when the court decided to reject the claim to preserve confidentiality on public interest immunity grounds.

51. The enormous concentration on the redacted paragraphs may have led us to overlook that this litigation has endorsed the application of public interest immunity and the maintenance of confidentiality over secret information. The Divisional Court has in effect upheld and applied PII principles to a vast body of material. Set against the redacted paragraphs over which the argument has ranged for something like 18 months there is, it must be remembered, a very lengthy closed judgment, not the subject of any further litigation, produced by the Divisional Court when the first open judgment was handed down. It is clear that the crucial importance of the confidentiality principle was recognised by the Divisional Court and in overwhelmingly large measure applied by it. This litigation therefore demonstrates that the courts in the UK treat the confidentiality principle with the importance it requires, and have endorsed it in this litigation.

52. I therefore repeat that (and unless the redacted paragraphs are published, what follows depends on my assertion) publication of the redacted paragraphs would not reveal information which would be of interest to a terrorist or criminal or provide any potential material of value to a terrorist or a criminal. The redacted paragraphs do not, for example, identify methods of surveillance currently unknown to potential terrorists, or reveal the methods employed by the security and intelligence services to penetrate terrorist groups. Indeed it seems right to emphasis that the publication of the redacted paragraphs would not and could not, of itself, do the slightest damage to the public interest. Equally, again by way of repetition, it is public knowledge, and clear from the open judgments and the submissions made on behalf of the Foreign Secretary, that there is and for many years has been an intelligence sharing relationship between the UK and the USA. No one can doubt it. Certainly, no on can conceal it. Moreover a close analysis of the redacted paragraphs in the context of all the open judgments would demonstrate that in reality they do not contain anything which cannot be read or inferred from the existing open judgments. For example, paragraph 87(iv) of the first open judgment is itself revealing about the detention of Mr Mohamed and the involvement of our intelligence services with him. It records that the “details of the reports” are set out in the redacted paragraphs. It is also clear from the open judgments that these reports were received by the intelligence services while Mr Mohamed was detained in Pakistan, when he was being interviewed by US authorities.

53.Without going into this material in detail, it increasingly appears that the issue is the control principle rather than the confidentiality of any information within the redacted paragraphs themselves. In other words the appeal concerns an application for PII, not

54. If it is not, the inevitable review would presumably reflect that the Foreign Secretary had done everything he lawfully could in the UK to prevent publication, as well as the considerations which led the court, exercising its independent jurisdiction, in large measure to uphold the confidentiality principle in the context of huge quantities of “secret” evidence in the closed judgment, and only after the most remarkably patient analysis of all the relevant considerations, to reject his PII applications. Presumably, too, the review would take into account the potential disadvantages to the battle against terrorism and the security of both countries if the intelligence sharing arrangements were reduced, and address the relationships between allies in a common cause, and with a common understanding of the possibility that it remained open to a court, whether in the UK or the USA, to refuse the PII application.

55. There is no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities. We are no longer dealing with the allegations of torture and ill-treatment: they have been established in the judgment of the court, publicly revealed by the judicial processes within the USA itself. And this serves to highlight that the redacted paragraphs represent part of the Divisional Court’s reasoning, directed not to wrongdoing by the USA authorities but involvement in that wrongdoing by our own intelligence services, and the successful argument by Mr Mohamed that he was entitled to the relief he had sought against the Foreign Secretary. In the context of intelligence sharing arrangements, the decision to disclose evidence critical of the USA authorities by a court in the USA does not reflect identical considerations to its possible disclosure by a court in the UK. Nevertheless, there is at least one common theme. The former represents the proper working of the judicial processes in the USA, and although the latter would constitute a breach of the confidentiality arrangements, the breach would be consequent on the proper working of the judicial processes in this country.

56. There is an attractive argument that Mr Mohamed has nothing further to gain from publication of the redacted paragraphs. That, however, is a consequence of his vindication through the operation of the litigation process and the prolonged delay consequent on the apparently endless arguments about the possible publication of the redacted paragraphs. The successful party is no less entitled to know the reasons for the court’s judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is maintained, Mr Mohamed will know less about the reasons for the court’s decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim. There is a clear interest in Mr Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr Mohamed’s entitlement to relief fell within the ambit of executive involvement in wrongdoing.

57. In my view, the arguments in favour of publication of the redacted paragraphs are compelling. Inevitably if they contained genuinely secret material, the disclosure of which would of itself damage the national interest, my conclusion might be different. However dealing with this appeal as a matter of practical reality rather than abstract legal theory, unless the control principle is to be treated as if it were absolute, it is hard to conceive of a clearer case for its disapplication than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture. Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself.

58. This appeal should be dismissed.

***

This appeal reflects very badly on Mr Miliband.

It is interesting to note that the Lord Chief Justice specifically noted Mr Sumption’s suggestions that the courts had been ‘irresponsible’.

The appeal was advanced by Mr Jonathan Sumption QC on the basis that the Divisional Court’s decision was in many respects “unnecessary and profoundly damaging to the interests of this country”, and indeed that part of the reasoning of the Divisional Court was “irresponsible”.

6.Like any other litigant, but no more than any other litigant, the Foreign Secretary, through counsel instructed on his behalf, was and remains entitled to advance robust submissions before this court, critical of the decision. The question for us is whether this appeal should be allowed. No advantage is achieved by bandying deprecatory epithets. Nevertheless at the very outset I shall record that even a cursory examination of the history of this litigation demonstrates the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court to the questions requiring its decision represented an exemplary model of judicial patience. Even if at the end of the argument I had disagreed with the Divisional Court there can be no doubt that its judicial responsibilities were discharged with scrupulous regard to the many difficult questions to which the litigation gave rise and with a clear understanding of the potential significance of an order that the redacted paragraphs should be published.

The Courts have dealt a very stringent reminder to government that they must act within the law – that could not be more clear. The judgment of Lord Neuberger reveals shocking torture.

The Guardian notes: “In the high court last year, Lord Justice Thomas and Mr Justice Lloyd Jones ruled that it was clear from the evidence “that the relationship of the United Kingdom government to the United States authorities in connection with Binyam Mohamed was far beyond that of a bystander or witness to the alleged wrongdoing”.”

It would seem that the Tories are not entirely sure about the tax paying status of their Deputy Chairman, Lord Ashcroft.

Senior Tory clears up Lord Ashcroft tax mystery … or does he?

The Guardian reports:“A senior source said Sir George Young had ‘mis-spoken’ when he told the BBC that Ashcroft was a ‘non-dom’. Today the party was forced to row back from what appeared to be the first admission by a senior Tory that Ashcroft was avoiding paying full British taxes. A senior source said Sir George Young had “mis-spoken” when he told the BBC that Ashcroft was a “non-dom” – ­allowing him to avoid paying British tax on ­overseas income and assets. The admission ­provoked immediate ­accusations that David Cameron, the Tory leader, was making a mockery of his claims to be a reformer and forced the party to say that the peer’s tax affairs were a private ­matter – a day after Cameron had insisted this approach was out of date.”

The words ‘piss up in a brewery’ come to mind.

Not being an employee of any kind, let alone a secret agent working for MI6, I can only assume that we have had to obtain information in the past of value to our national interest by paying informers. This seems a perfectly reasonable and sensible thing to do if it could prevent terrorist attacks or save lives in a military situation. We have to distinguish it from the type of business best practice engaged in by organisations like BAe for example – who got hit with a massive ‘fine’ the other day.

The Telegraph reports: “Members of the security services and armed forces have offered such bribes on “hundreds of thousands” of occasions, peers were told. The House of Lords voted to amend the Bribery Bill currently passing through Parliament – to insist that ministers “pre-authorise” bribery by members of the intelligence and security services.

Lord Woolf, a former,. distinguished, Lord Chief Justice said: “It is a very significant power to give to give to the security services and the other services……If it [pre-authorisation] is practical in terms of telephone tapping or in relation to searching of premises, why can something not be done also in these cases?”

He added: “It is a very corrosive exercise to resort to bribery and, if bribery is going to be resorted to, it does need care and protection of the sort that I have indicated.”

It would appear that HM Government is none too happy with this ‘intervention’. The government seems to be getting a fair bit of ‘intervening’. Only this week the government has had to rush through legislation to allow them to block terrorist assets after being told that their previous actions were ‘illegal’.

Labour broke privacy rules with phone campaign

The Independent reports:“Labour breached privacy rules by making unsolicited automated phone calls to almost half a million people without their consent, the Information Commissioner’s Office ruled today.The calls, featuring a recorded message from Coronation Street actress Liz Dawn, were targeted at around 495,000 people in areas with strong Labour support to encourage them to turn out to vote in the local and European elections last June.

In a wonderful piece of understatement… Deputy Information Commissioner David Smith said calls of this type can cause “annoyance and disruption” to those receiving them.

“It is not at all clear to me what, if any, legal justification of its action the US government relied on . . . If I am right and the invasion of Iraq . . . was unauthorised by the security council, there was a serious violation of international law and the rule of law . . . It is, as has been said, ‘the difference ­between the role of world policeman and world vigilante.’ ”

“I took the view which Michael Wood and Elizabeth Wilmshurst [legal advisers to the Foreign Office in 2003] took – that it simply wasn’t authorised,” he tells me. “The whole of the Foreign Office thought this.” Did he express that view to the government at the time, in his position as senior law lord? “No, it would have been quite improper for me to do that. I wouldn’t have dreamed of making this statement at a time when I could still have found myself in a position to rule on this question judicially, which seemed a possibility.”

The Suncontinues with in-depth political analysis to persuade their readership tto the Tory cause with this investigative piece…

FEMINIST Labour MP Harriet Harman is in line for the annual Rear of the Year award.

The 59-year-old Deputy Leader could become the unlikely favourite for the honour after being earmarked alongside glamour girls as well as stars of soap and reality TV.

They say that Harriet Harperson is taking a long view and plans to become the next leader of the Labour Party. She also plans to remove the word ‘Chairman’ from parliamentary language. It is always pleasing to see senior government figures focusing on the important issues of the day.

The law has many facts, twists and turns. The Telegraph reported yesterday…

The Big Question: What is parliamentary privilege, and is it being abused?

High numbers of women and solicitors appointed to judicial posts

“More than half the candidates selected in the last recruitment round for fee-paid employment tribunal judge positions were women, statistics have shown, while three-quarters of selected candidates were solicitors. The Judicial Appointments Commission today published the statistics for the two most popular selection exercises for fee-paid roles run between April and September 2009.

In total, 982 lawyers applied for 128 posts as fee-paid recorders on the South East Circuit, and 624 applied for 36 posts as fee-paid employment tribunal judges. Of those selected for fee-paid employment tribunal posts, 54% were women, while 75% were solicitors and 6% were from a black or minority ethnic (BME) background. In the recorder exercise, 37% of those selected were women, 13% were from a BME background and 11% were solicitors.”

Baroness Prashar, fitting in a bit of work on judicial appointments, between spells as a grand inquisitor on the Iraq Inquiry panel …: ‘BME candidates have done particularly well in the recorder South East exercise, where they performed better than their numbers in the eligible pool, and I am pleased to see our first applications from ILEX (Institute of Legal Executives) fellows seeking to become employment tribunal judges.’

She said the selection process is ‘open and fair’ and the JAC selected only the most talented from those who applied. It is always pleasing to hear that ‘only the most talented’ are appointed. This is not a universal truth and the recent ‘skulduggery’ over at the Supreme Court over Jonathan Sumption QC’s proposed leapfrogging over Court of Appeal judges for the 12th Justice post may well be an example of this truth not being applied. The appointment process for the 12th Justice does seem to be taking rather a long time….

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